KECRI.org

Lawyers Member Salesmen

According to the exercised action and the object of the same, some or several of the payments received for price could be declared ineffective, that would have therefore to be refunded by the salesmen to the active mass. Especially complex they would be the consequences of a invalidity declaration of all the operation of LBO: the salesmen would recover the ownership of target company, the fusion of this one with the society vehicle would have of ” deshacerse” to form part of an illegal and null operation, etc. It is more, the salesmen, like partners of target company, besides restituting the price perceived with base on the LBO could pass to be deserving subordinates of target company competed, to concur in them the legally established circumstances. Valuation and convenience of a concrete legal solution Several authors have criticized the categorical prohibition of financial attendance for the acquisition of action/own participation anticipated in our mercantile legislation, essentially because the LBO and the consequent use of the club indebtedness can take care of the fulfillment of objectives or perfectly legitimate formulas of enterprise reconstruction. Indeed, since it has indicated Vaquerizo Alonso, the surcharge satisfied to the new majority shareholder within the framework of the LBO does not have to be necessarily understood like a patrimonial reduction or a robbery to the society, because it it would suppose to ignore the planned beneficial effects by means of the operation and that are seen necessarily reflected in the greater value of the actions/participation at the time of the acquisition. Such surcharge can thus be reflected of the new expectations of arisen future yields of the company as a result of the reconstruction that normally the substitution of the majority of control brings with himself, for example, the reduction of operative costs, a better advantage of the social resources derived from changes in the management, etc. But it does not imply that the enormous potential of the LBO must be avoided to generate conflicts of interests between promote those who them and who are themselves affected by them in spite of their lack of intervention in the same, being undeniable that a great part of the risk associated to the operation is supported by the creditors. Of there convenience of that legislator settles down solutions legal to problems that can generate the LBO, what would be – by example the establishment of a regime of subordination of credits, of way that it was put in front in the collection to the preexisting creditors to the operation of LBO in front of the creditor who participated in his planning.